State v. Brown

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

Rico Brown, Appellant.

Appellate Case No. 2011-189148

Appeal From York County
Paul M. Burch, Circuit Court Judge

Unpublished Opinion No. 2013-UP-342
Heard December 11, 2012 – Filed August 28, 2013
Withdrawn, Substituted and Refiled September 25, 2013

AFFIRMED

Breen Richard Stevens and Benjamin John Tripp, both of
S.C. Commission on Indigent Defense, of Columbia, for
Appellant.

Attorney General Alan McCrory Wilson, Chief Deputy
Attorney General John W. McIntosh, Senior Assistant
Deputy Attorney General Salley W. Elliott, and Assistant
Attorney General Christina J. Catoe, all of Columbia, for
Respondent.
PER CURIAM: Rico Brown appeals his convictions on charges of criminal
conspiracy and possession of tools used in commission of a crime. In addition to
arguing that substantial circumstantial evidence of Brown's guilt was presented at
trial, the State contends Brown's directed verdict motion did not preserve any issue
for appeal and Brown's statements to the trial court after he was convicted
warranted affirmance of his convictions without further review of the record.

We affirm Brown's convictions on their merits pursuant to Rule 220(b), SCACR,
and the following authorities:

1. As to the charge of possession of tools used in commission of a crime: State
v. Ballenger, 322 S.C. 196, 199, 470 S.E.2d 851, 854 (1996) (noting in the context
of possession with intent to distribute narcotics that "'[a]ctual possession occurs
when the drugs are found to be in the actual physical custody of the person charged
with possession, while constructive possession occurs when the person charged
with possession has dominion and control over either the drugs or the premises
upon which the drugs are found'" (quoting State v. Ellis, 263 S.C. 12, 22, 207
S.E.2d 405, 413 (1974)); id. at 199-200, 470 S.E.2d at 854 ("Circumstantial
evidence may be used to prove actual possession."); State v. Cherry, 361 S.C. 588,
594, 606 S.E.2d 475, 478 (2004) (stating a trial court should not refuse to direct a
verdict "when the evidence merely raises a suspicion that the accused is guilty,"
but also emphasizing that "a trial judge is not required to find that the evidence
infers guilt to the exclusion of any other reasonable hypothesis"); State v.
Puckett, 237 S.C. 369, 379, 117 S.E.2d 369, 374 (1960) (acknowledging in a trial
in which the charges against the defendants included possession of tools used in
the commission of a crime that many of the tools found in the defendants' car
"could be put to a lawful use," but holding "it is not reasonable to suppose that a
person without criminal intent would be driving about with such an assorted [and]
complete collection of tools and implements commonly used in burglary, larceny
and safe cracking").

2. As to the charge of criminal conspiracy: Wyoming v. Houghton, 526 U.S.
295, 304-05 (1999) ("[A] car passenger . . . will often be engaged in a common
enterprise with driver, and have the same interest in concealing the fruits or the
evidence of their wrongdoing." (emphasis added)); State v. Odems, 395 S.C. 582,
588, 590, 720 S.E.2d 48, 51, 52 (2011) (reversing convictions on conspiracy, first-
degree burglary, and other charges and noting (1) the explanation by an alleged co-
conspirator as to how the defendant ended up in a vehicle with the culprits even
though the defendant did not participate in the burglary, and (2) the absence of
evidence placing the defendant at the scene of the burglary); id. at 591, 720 S.E.2d
at 53 (acknowledging the State offered no direct evidence that the defendant
committed criminal conspiracy or any of the other offenses with which he was
charged, but further stating that "substantial circumstantial proof of Petitioner's
involvement in one of the four offenses would prove Petitioner's involvement as to
all offenses"); State v. Wilson, 315 S.C. 289, 294, 433 S.E.2d 864, 867-68 (1993)
(recognizing that "overt acts committed in furtherance of the conspiracy are not
elements of the crime," but further stating that "[t]he substantive crimes committed
in furtherance of the conspiracy constitute circumstantial evidence of the existence
of the conspiracy, its object, and scope").

3. We also reject the State's arguments that Brown's convictions should be
affirmed on either error preservation grounds or because of general expressions of
remorse that Brown made in court after the verdicts were read. As to error
preservation: Rule 19(a), SCRCrimP ("On motion of the defendant or on its own
motion, the court [in a criminal proceeding] shall direct a verdict in the defendant's
favor on any offense charged in the indictment after the evidence on either side is
closed, if there is a failure of competent evidence tending to prove the charge in the
indictment."); id. (omitting the requirement in Rule 50(a), SCRCP, that "[a] motion
for directed verdict shall state the specific grounds therefor" when such a directed
verdict motion is made during a criminal proceeding); State v. Brannon, 388 S.C.
498, 502, 697 S.E.2d 593, 595-96 (2010) (stating "[e]rror preservation rules do not
require a party to use the exact name of a legal doctrine in order to preserve an
issue for appellate review" and requiring a litigant only "to fairly raise the issue to
the trial court, thereby giving it an opportunity to rule on the issue" (citations
omitted)); State v. James, 362 S.C. 557, 562-63, 608 S.E.2d 455, 457-58 (Ct. App.
2004) (holding that although the defendant did not use the term "substantial
circumstantial evidence" in his directed verdict motion, he preserved this issue for
appellate review by arguing there was insufficient evidence to support the elements
of the charge against him); id. at 563, 608 S.E.2d at 458 (further noting it was
apparent from the trial court's ruling on the defendant's directed verdict motion that
the court understood the basis for the motion to be the lack of substantial
circumstantial evidence). As to Brown's admissions after the verdicts were read:
State v. Sroka, 267 S.C. 664, 665, 230 S.E.2d 816, 817 (1976) (noting the
defendant specifically admitted in open court after he was convicted "that he had
participated in the robbery with a sawed-off shotgun"); State v. Wiley, 387 S.C.
490, 497, 692 S.E.2d 560, 564 (Ct. App. 2010) (noting the defendant proclaimed
his desire "to apologize to the Court for getting [himself] in this trouble" (emphasis
added)).

AFFIRMED.

HUFF, THOMAS, and GEATHERS, JJ., concur.